Feds skirt 10th Amendment to trample 2nd

Ever since the Gun Control Act of 1968 established a licensing system for gun dealers, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, has been loading gun dealers down with ever-increasing responsibilities for record keeping, reporting and, to a growing degree, psychic precognition.

For years ATF has run sting operations against dealers trying to catch them selling guns to someone that they “should have known” was acting as a straw buyer. A straw buyer is someone who illegally purchases a gun for someone who presumably couldn’t buy the gun for themselves. Federal law forbids the sale of firearms to any “prohibited person,” including convicted felons, anyone convicted of a misdemeanor crime of domestic violence, illegal aliens, anyone involuntarily committed for mental illness and anyone who is an “unlawful user of, or addicted to, any controlled substance.”

In late September, the ATF sent an “open letter” to all federal firearms licensed dealers, or FFLs, advising them that anyone licensed by their state to legally (in the state’s eyes) use marijuana for medicinal purposes is an unlawful user of a controlled substance under federal law and therefore prohibited from purchasing or possessing firearms. Even if the person has never used marijuana, the fact that they are licensed by the state to do so makes them a prohibited person according to the ATF.

This is only the latest direct conflict between state and federal law regarding medical marijuana. As more and more states legalize the use of marijuana for medicinal purposes, the questions about jurisdictional supremacy have increased.

Several high-profile incidents of federal agents conducting SWAT assault raids on state-licensed cannabis dispensaries and arresting individual prescription users resulted in some public backlash, causing the feds to back off a bit and employ less aggressive methods. Rather than raids against dispensaries (which often include disturbing evening news video of officers in combat gear entering dispensaries and arresting cancer patients), the new tactic relies on making life as difficult as possible for patients and distributors by using peripheral regulations and restrictions pertaining to things like commercial drivers’ licenses, pilots’ licenses, professional certifications, OSHA regulations, business and zoning regulations and now possession of firearms.

The medical marijuana issue is rife with Ninth and Tenth Amendment issues. The crux of the issue is not whether marijuana is good or bad, or whether people who use marijuana for medicinal purposes should or should not be able to buy and own firearms. The issue is whether those decisions should be made by the residents of a state or by the federal government, and just how much authority the federal government has to override the decisions of the people of a state. As things stand, the feds have the law and Supreme Court decisions on their side, but the controversy over medical marijuana could be the match that lights a Ninth and Tenth Amendment bonfire.

For firearms rights advocates, the issues are two-fold: the permanent cancellation of a fundamental, enumerated, constitutional right based on something that a state has specifically declared to be legal, and the additional burdens and threats such restrictions place on FFLs as they try to go about their business in a lawful manner.

Moreover, this action by ATF places gun rights on a slippery slope. Is a cancer patient with a prescription for morphine a prohibited person? Palliative care can entail doses of morphine or other narcotics that are unquestionably addictive.

While we’re on the topic, how should we define “addicted to?” What about psychoactive drugs for conditions like depression, attention deficit disorder or narcolepsy? Those drugs are on the list of controlled substances. Is a daily maintenance dose of Adderal (a Schedul II controlled substance) an addiction?

On the other side of defining addiction, twelve-step participants will tell you that once an addict, always an addict. Is a recovering heroin addict who has been clean for ten years still “addicted” under the law?

At the center of all this sits the poor FFL holder who, if he “should have known” the answer to any of these questions, puts his license, his livelihood and even his freedom at stake every time he helps a customer fill out a new Form 4473.

While The Firearms Coalition takes no position at all on medical marijuana, or on any issue outside the narrow scope of constitutional rights as they pertain to firearms, we want to stick up for the FFL holder who, it seems, is expected to exercise psychic powers to know when a would-be purchaser is lying on the purchase form.

Sen. John Tester, D-Mont., has written a strong letter to Attorney General Holder objecting to ATF’s latest regulatory determination. We’re hoping to see more members of congress follow Sen. Tester’s lead, but in the long run, this problem cannot be fixed with complaints. It must be addressed legislatively. Congress must take action to either specifically recognize the states’ rights to legalize marijuana under certain circumstances, or they must exert federal authority to stop the practice altogether. Allowing the conflict to fester serves no one and, in the case of firearms, places FFLs in a dangerous situation.

Telling cancer and AIDS patients that they may not have medication that they insist helps them cope with the ravages of their disease, and which their state legislatures and fellow citizens have specifically made available to them, is a hard sell. Telling those same people that they forfeit their Second Amendment rights if they choose to use a state-sanctioned medicine in accordance with their doctors’ orders is a stretch of constitutional authority. Placing FFLs in the middle as federal enforcers is totally unacceptable.

Let your elected servants in Washington know that you disapprove of ATF’s latest diktat. Ask them to take action to protect the constitutional rights of persons engaging in activities their states have declared lawful. Tell them to direct ATF to stop requiring psychic powers of FFL holders. Demand that they abide by the Ninth, Tenth, and Second Amendments to the Constitution.

Today it’s medical marijuana users. Tomorrow the ATF ratchet could tighten down even further to deny Second Amendment rights to yet another slice of the population.